The Courts of "Absolute Power"

Fair Trial Violations by Somalia’s Military Court

Prisoners at Mogadishu Central Prison watch as a guard walks pass their cell in December 2013. Most of the military court’s hearings in Mogadishu take place inside the prison, which limits access to hearings for relatives and independent monitors.

Summary

These military tribunal guys think they have absolute
power, and you can’t talk to them, you can’t ask them anything, and
they don’t respect the human rights of people.

—Defense lawyer, telephone interview, October 2013

Since 2011 the government of Somalia has relied heavily on the
military court of the armed forces to try a broad range of crimes and
defendants. The court has brought to trial, in addition to members of the armed
forces, alleged members of the main Islamist armed group Al-Shabaab, police and
intelligence agents, and ordinary civilians. Hundreds of defendants have been
tried in the capital, Mogadishu, and in other towns in Somalia’s south-central
region that are nominally under the government’s authority. The military court
has filled a vacuum left by barely functioning civilian trial courts, operated
without judicial review from the Supreme Court, and conducted proceedings that
fall far short of international fair trial standards.

The military court, consisting of serving military officers,
does not meet the fundamental requirement under international law of being a
competent, independent, and impartial court. Trials have violated the basic fair
trial rights of defendants to obtain counsel of their choice, prepare and present
a defense, receive a public hearing, not incriminate themselves, and appeal a
conviction to a higher court. More than a dozen of those convicted over the
last year have been sentenced to death and executed, magnifying the harm to
basic rights.

This report is based on over 30 interviews conducted in
Somalia and Kenya between April 2013 and March 2014 with defendants and defendants’
relatives, as well as military court officials, lawyers, and legal experts. It
documents a range of human rights violations that require urgent attention by
the Somali government and its international donor partners as part of the
broader justice reform effort in Somalia.

While Somalia’s criminal justice sector has received
some attention from international donors, the military court has yet to receive
significant attention or scrutiny. Given the military court’s broad
powers, particularly its assertion of jurisdiction over civilians in violation
of international human rights law, significant changes are urgently needed to ensure
that all criminal defendants receive a fair trial.

In August 2011, following intensive fighting in Mogadishu
and the withdrawal of Al-Shabaab from the city’s center, then-President Sheikh Sharif Sheikh Ahmed of the former Transitional Federal
Government (TFG), declared a state of emergency in areas of Mogadishu
recently vacated by Al-Shabaab. The emergency decree granted
the military court jurisdiction over all crimes committed in areas under the
state of emergency—giving the military court jurisdiction over civilians
by default.Although the state of emergency expired
after three months, the military court since then has continued to try a range
of defendants beyond that envisioned under the Code of Military Criminal
Procedure.

Somali authorities and military court officials have
defended the jurisdictional breadth and in particular the trial of all Al-Shabaab-related
cases on the grounds that the ordinary courts are unprotected, vulnerable to
attacks, and that the country faces pressing security needs. The military court
has also tried cases traditionally difficult for civilian courts, such as
prosecuting members of the police and intelligence agencies. But while security
and other concerns facing the civilian courts and its officials are genuine, they
cannot justify the violation of defendants’ rights to a fair trial.

Many of those brought before the military court have been arrested
during mass security sweeps by Somalia’s intelligence agency, the
National Intelligence and Security Agency (NISA). On occasion NISA detains
people for prolonged periods without judicial review. It is unclear whether
NISA has a legal mandate to carry out law enforcement activities.

Since 2011, military court judges have made efforts to ensure
that defendants are provided access to legal counsel, including in more remote
areas where the court operates on a mobile court basis. However, as was evident
during several days of mass trials in the city of Baidoa in July 2013,
defendants only had fleeting access to a lawyer who was representing dozens of
defendants and not in a position to provide any of them an adequate defense. The
impact of a supreme military court,
established in late 2012, remains unclear.

Human rights violations by the military court require
attention of both the Somali government and its international partners who have
committed to supporting the rebuilding of the country’s justice system.
In late 2012, shortly after taking office, President Hassan Sheikh Mohamud made
justice reform a priority. The international community has responded by placing
justice on its agenda, including in the New Deal compact, which seeks to
establish a development framework that will govern assistance to Somalia over
the next three years.

Improving Somalia’s justice system will take time, but
significant steps can be taken now. President Mohamud should direct the Ministry
of Justice, with Ministry of Defense support, to transfer cases involving
civilian defendants from the military to the ordinary courts, and parliament
should enact legislation clarifying that. The president should impose a
moratorium on the death penalty until it can be abolished. And, consistent with
Somalia’s provisional constitution, parliament should enact a law ensuring
that military personnel who are implicated in abuses against civilians are
tried in ordinary courts. It should also enact laws that will help protect the
rights of defendants before all jurisdictions, notably a legal aid law and a
rights-respecting national security law. These measures will
need to go hand-in-hand with donor-supported efforts to bolster the capacity,
accountability, and security of the ordinary courts. Appropriate training for
all judges, prosecutors, and defense lawyers should be expanded, and ensuring
free legal assistance for the indigent should be a priority.

Somalia’s rebuilding will be a long and arduous task. A
well-functioning criminal justice system is essential for ensuring that this
process will benefit the human rights of all Somalis. Decisions made now are
likely to have an impact for a long time to come.

Recommendations

To the President

Transfer existing cases of civilians being tried
in military courts to the civilian criminal justice system;

Direct the military attorney general to
transfer future cases of civilians under military court jurisdiction to the
attorney general for civilian court prosecution;

Immediately commute pending death penalty
sentences as a first step towards placing a moratorium on all death sentences; urge
the parliament to ban all use of the death penalty;

To the Somali Parliament

Promptly enact legislation that would
provide supreme court appellate review of military court decisions and would
specifically prohibit the trial of civilians in military courts;

Consistent with the Somali provisional
constitution, enact legislation to ensure that human rights abuses alleged to
have been committed by members of the armed forces against civilians are
brought before a civilian court;

Enact a legal aid law, as stipulated in the
provisional constitution, to establish a legal aid system that provides free
legal assistance to defendants if they cannot afford a lawyer and helps to
ensure that legal assistance is available throughout the country;

Enact a rights-respecting national security
law, as stipulated in the provisional constitution, that defines the different
roles of national security agencies and clarifies that the National
Intelligence and Security Agency has no powers to arrest and detain;

Consider enacting legislation to restrict
the military court to trying offenses by members of the armed forces only of a
military nature.

To
the Chief Justice

Take all necessary measures to ensure that
the judiciary is capable of conducting independent, impartial, and competent
trials in accordance with international standards;

Direct judges to ensure that all detainees
have access to a court to seek a review of the legality of their detention.

To the Minister of Justice

Provide appropriate training to civilian
court personnel, including judges and prosecutors, on Somali criminal law and
procedure and international human rights standards for fair trials;

Assist the minister of defense in providing
appropriate training to military court personnel, including judges and
prosecutors, on Somali criminal law and procedure and international human
rights standards for fair trials;

Ensure, with the assistance of relevant government
agencies, that ordinary courts and personnel are accorded adequate security and
protection;

Expedite the drafting of a legal aid law, as
stipulated in the provisional constitution, to establish a legal aid system
that provides free legal assistance to defendants if they cannot afford a
lawyer and helps to ensure that legal assistance is available throughout the
country.

To the Chairman of the Military
Court

Direct military judges to implement Somali
law, including Sharia, in conformity with international law for fair trials;

Direct military judges to ensure that all
detainees have access to a court to seek a review of the legality of their
detention.

To
the Ministers of Security and Interior

Ensure that personnel of NISA do not conduct
arrests or detention unless they have specific legal authority to do so;

Provide to the attorney general the names
and full information on all persons in custody, including those held by NISA;

Expedite the drafting of a rights-respecting
national security law, as stipulated in the provisional constitution, that
defines the different roles of national security agencies, and clarifies the legal
authority of NISA to arrest and detain;

Ensure, with the assistance of relevant government
agencies, that ordinary courts and personnel are accorded adequate security and
protection;

Ensure that all detained individuals have
access to a court to seek a review of the legality of their detention.

To the Minister of Defense

Ensure that military authorities fully
cooperate with investigations carried out by civilian prosecutors.

To the Military Prosecutors
and Judges

Ensure that all detained individuals have prompt
access to a court to contest the lawfulness of their detention;

Ensure that defense lawyers are granted full
access to their clients, all necessary information and files, and adequate time
to prepare a defense;

Allow independent oversight of military
court proceedings by providing access to independent human rights monitors. In
addition, ensure greater access to court proceedings by members of the public,
security permitting.

To International Donors and Agencies
Engaged in Justice and Security Sectors

Publicly support measures outlined above to
end the trial of civilians before military courts;

Call on the Somali president to immediately impose
a moratorium on the death penalty and urge the parliament to abolish capital
punishment;

Support efforts to ensure that military
courts act in accordance with international fair trial standards;

Support efforts to train criminal defense
lawyers and programs to provide legal counsel for the indigent in criminal
cases;

Encourage national legislation that would
provide civilian judicial review of military court decisions.

United Nations Assistance
Mission in Somalia (UNSOM) Rule of Law and Human Rights Sections

Conduct frequent monitoring of military
court proceedings as well as detention facility monitoring, including
facilities run by NISA.

Methodology

This report is based on research carried out between April
2013 and March 2014, including two trips to Somalia’s capital, Mogadishu,
in December 2013 and in February 2014. Interviews were conducted in person in
Mogadishu and in Nairobi, Kenya, and by phone.

Human Rights Watch interviewed
over 30 former defendants and relatives of defendants who had been tried before
Somalia’s military court between late 2012 and early 2014. We also
interviewed the former chairman of the military court, the military attorney general,
the chief justice of the Supreme Court, and five civilian criminal defense lawyers who have represented individuals
before the military court. We also consulted with Somali and international legal experts and United Nations
staff working on rule of law issues.

All former defendants and
their relatives were informed of the purpose of the interview and its voluntary
nature and their right to end the interview at any point. Many voiced
considerable concern about reprisals—either
against family members or themselves—from military court officials and
others if they were known to be speaking about the administration of
military justice in Somalia. Initials have been used to protect the identities
and other identifying information of interviewees. Interviews were conducted in
Somali, Afmay, a local dialect, and English. Those interviewed were not
remunerated.

The limited access to military court documents and proceedings,
security concerns making trial monitoring throughout Somalia difficult, and
fear of reprisals kept this report from being a full assessment of military
court practices and policies. Rather it offers an overview of some of the most
pressing due process concerns.

We also provide our recommendations to the government and
international donor community for better protecting the rights of individuals
facing trial before the military court.

I. Background

The Code of Military Criminal Law in Peace and War (1963)[1]
and the Code of Military Criminal Procedure in Peace and War (1964)[2]
established military courts that are separate from the civilian criminal
justice system.[3] These
codes apply to members of the armed forces during peacetime and more broadly after
a state of war or a state of emergency is declared. Now 50-years-old, these
codes reflect an outdated system of military justice that does not conform to
international standards of due process.

The Somali military justice system has trial courts, with appeals
being heard by the Supreme Military Court.[4] In times
of war, mobile sessions of the military tribunal can be established following a
decree by the president.[5] Courts
of first instance can try all

offenses defined in the code, including those that carry the
death penalty. An appeal can be lodged with the
Supreme Military Court on the basis of procedural flaws or errors of law in the
sentencing.[6]

There is a lack of clarity on the military court’s
application of Somali laws. The military court is currently
applying the three overlapping legal frameworks operating in Somalia: the
formal system of general law based largely on the military and ordinary criminal
codes; Sharia (Islamic law); and on occasion xeer law (Somali clan-based
customary law).[7]

After a decade of internecine war, parts of Somalia in 2004
became nominally governed by the Transitional Federal Government (TFG).[8]
In August 2011, then-TFG President S Sheikh Sharif Sheikh Ahmedsigned a presidential decree declaring a state of emergency in
areas of Mogadishu that had been recently vacated by the Islamist armed group Al-Shabaab, which included the city’s
Bakara market, along with internally displaced persons camps.[9]The emergency decree granted greater powers to the military court,
notably jurisdiction over all criminal offenses in areas under the state of
emergency, and by default including those committed by alleged Al-Shabaabmembers and civilians.[10]
The decree granted the military court authority to apply the Military Criminal
Code of War, which applies to individuals in the national armed forces, for just
three months.[11] It was
never renewed.

Military court officials told Human Rights Watch they have been
applying the Military Criminal Code of Peace. This code only permits civilians
to be tried by military courts for certain military crimes, such as unlawful communications
with a foreign state, resistance, threats or insults to sentries or guards, and
seditious activities.[12] However,
there appears to be some confusion among lawyers as to which code—for
peace or war—is being used and whether or not the emergency decree remains
applicable.[13]Military court officials told Human Rights Watch that the criminal law
was the main source of authority, but judgments cannot conflict with Sharia
law.[14] This is in line with a law passed in 2009 by the Somali Transitional
Federal Parliament requiring all court decisions to comply with Sharia.[15]

The Code of Military Criminal Law in Peace applies to “military
personnel serving in the armed forces” along with civilians attached to
the armed forces.[16]
Military court officials have sought to prosecute Al-Shabaab-related cases on the basis that members of Al-Shabaab, as organized military fighters,
fall within the jurisdiction of the military court. This would not appear to be
the plain reading of the statute, which appears intended for members of the Somali
armed forces.

The various channels and
procedures by which defendants have appeared before the military court remain
unclear. Military court officials and lawyers point to people arrested in
large-scale security operations, notably by the country’s National
Intelligence and Security Agency, as representing a large number of those cases.[17] These operations happen on a regular basis in
Mogadishu primarily following attacks and security incidents, and outside of
Mogadishu including when towns come under the government’s control
following a military offensive.[18] Once in the hands of NISA, individuals accused
of Al-Shabaab-related crimes are reportedly being categorized as top-level,
high, or low risk. However, according to the United Nations, the criteria used
to determine the category and the outcome of the process, including which cases
to transfer to military courts, are unclear.[19]

The violations of basic rights faced by individuals tried
through the military courts are not therefore limited to the trial itself. Many
people have been arbitrarily arrested by the police and the NISA during mass
sweeps when dozens of people are taken into custody with often very limited
evidence of wrongdoing. These are particularly likely to be charged with
“membership” in Al-Shabaab.[20] As the chief
justice told Human Rights Watch, “At present such an arrest could happen
to anyone.”[21]

Suspected insurgents rounded up during a security sweep in
Mogadishu’s Wardhigley district in May 2013. Those arrested during
security operations have on occasion been tried in mass trials before the
military court. Photo Courtesy of Tobin Jones

In addition to arbitrary arrests, detainees held by NISA in
particular are on occasion held for lengthy periods without access to a court. Human
Rights Watch is unaware of any case in which bail was granted by the military
court. One court lawyer told Human Rights Watch he has stopped asking for bail
as the judges “just laugh at us when we request bail.”[22]

In September 2012, Hassan Sheikh Mohamud, the newly selected
president of the Federal Government of Somalia, which replaced the TFG,
declared justice to be one of the six pillars of his reform agenda.
International donors have responded to this call and made reforming the
criminal justice system a priority. For instance, justice reform is among the
five peace and state-building goals in the New Deal compact endorsed in
Brussels in September 2013, which sets the framework for international
development assistance for the Somali government over the next three years.[23]
The New Deal compact focuses on reforming the civilian courts. International
donors assisting in Somalia’s justice system should not overlook the
significant concerns with the functioning of the military courts outlined below
nor neglect reform of the military courts.

II. Right to a Fair Trial

Individuals who appeared before or attended proceedings of
Somalia’s military court, including former defendants and their
relatives, as well as lawyers and court staff, described various practices and
procedures that undermine defendants’ rights to a fair trial under international
law. These rights, set out in the International Covenant on Civil and Political
Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (the Banjul
Charter), among other instruments, include the rights to: legal counsel and to
prepare a defense, a prompt and public trial by a competent, independent and
impartial court, and an appeal to a higher court.[24]
Many of these rights are also recognized in Somalia’s provisional
constitution.[25] Human
Rights Watch also has grave concerns about the military court’s use of
the death penalty.

Rights to Legal Counsel and to Prepare a Defense

International law requires that defendants have access to a
lawyer of their choice throughout criminal proceedings, including during
pre-charge and pretrial detention, to help protect against mistreatment and to
ensure their rights are defended in court.[26] Those
who are unable to afford legal counsel are entitled to have counsel provided by
the state without payment.[27] Defendants
should have timely, private, and confidential access to their lawyers.[28]

Defendants should also have adequate time and facilities to
prepare a defense. This means providing timely access to charges, appropriate
files, and all evidence the prosecution plans to use in court or is exculpatory.[29]

The Code of Military Criminal Procedure in Peace provides
for a defendant before the military court to have access to a military lawyer
without payment.[30] While Somalia’s
military court has provided defendants who are in custody greater access to lawyers
than in the past, the capacity of most persons tried before the military court
to exercise their right to counsel of their choice and prepare a defense remains
minimal. Civilian defense lawyers may be excluded from military court hearings
in the procedural code, though we did not document any instances in which the
court had excluded civilian lawyers from proceedings.[31]

Human Rights Watch is aware of at least four civilian lawyers
who have regularly represented defendants, including military and security
personnel and alleged Al-Shabaab members,
before the court for fees.[32]
However, free legal assistance has not been available for indigent defendants
before the military court, although this is provided for under the provisional
constitution.[33] There
are no lawyers for the indigent paid for by the military or by the government.[34]
It is not clear whether indigent defendants are able to obtain any
representation.

Outside of Mogadishu the right to counsel is severely limited
because the country’s few dozen lawyers tend to be concentrated in the
capital. In the cases examined by Human Rights Watch, lawyers traveling with
the mobile court were appointed to serve as defense counsel at very short
notice and with very little time to prepare a defense.

Defendants often have very limited opportunity to discuss their
case with their lawyer. This could even be just a couple of minutes or up to a
day in advance of their appearance in court, including for capital punishment
offenses.[35] For
instance, from July 16 to 20, 2013, the mobile court heard over 130 cases in the
city of Baidoa. On the first day of hearings, the chairperson of the trial
court, Col. Liban Ali Yarow, requested the presence of a lawyer, and one of the
town’s only lawyers was brought in. The lawyer was given only a few hours
to prepare a defense for the 40 defendants being brought before the court that
morning. Unsurprisingly, he was not able to meet with every defendant, let
alone have the opportunity to prepare an adequate defense.[36]
On the second day, the court gave the lawyer until 11 a.m. to prepare the
defense of over 20 cases, including four murder cases and five cases relating
to charges of Al-Shabaab-related
activities.[37]

Lawyers representing cases before the military court told Human
Rights Watch that they had only limited information on the cases, on their
clients’ case files, and the evidence.[38] In the
July 2013 hearings in Baidoa, the defense counsel only had a list of the
defendants’ names and no charges or any other pertinent information.[39]

Defense lawyers in Mogadishu told Human Rights Watch that
they do not receive a list of prosecution witnesses before appearing before
court.[40] They
are not even sure whether they have a right to access their client’s case
files under Somali law. One lawyer said he gets a list of the basic articles
his clients are being charged with, but is not provided access to the full
files.[41] Another
lawyer blamed the judges for denying them access to their clients’ files:

The judges don’t understand international standards
or the constitution. They see our requests to access files as
an interference in proceedings. We ask the court clerks and the
officials in the prosecution office, but they tell us to ask the judges for
permission. The judges refer to an outdated law that denied access to
prosecution files.[42]

Right to Be Tried before an Impartial and Independent
Tribunal

A basic fair trial requirement is the right to be tried
before an impartial and independent tribunal. Independence of judges refers to
their appointment and security of tenure, conditions governing promotion and
transfer, and freedom from outside interference, particularly from the
executive branch.[43]

The composition and structure of Somalia’s military court
lacks the necessary independence and impartiality required under human rights
law because the executive branch is in a
position to control or direct the court.The court officials in Somalia’s military
courts remain under the military chain of command. Military judges and other
court officials are thus subject to discipline or reprimand by their superior
officers and ultimately the minister of defense. The judges are therefore at
risk of external influences in their judicial decisions. The current judges
were directly appointed by the then-minister of defense with the approval of then-president
Sheikh Sharif, with no parliamentary approval.[44] The
process whereby judges are dismissed is unclear.

Right to Be Tried
before a Competent Tribunal

Somalia’s military court asserts jurisdiction over
civilians as well as military personnel. It not only brings to trial
members of the Somali armed forces for offenses, but also alleged members or
fighters of Al-Shabaab, members of
civilian state agencies such as the police and NISA, and on occasion ordinary
civilians. This wide-ranging jurisdiction, conflicting with international and
regional standards that sharply restrict and even prohibit military court
trials of civilians, is particularly problematic because of the court’s
notable lack of independence from the defense command structure, as discussed
above.

As a matter of Somali law, the military court’s
continuing claims of jurisdiction over civilians seems doubtful. The 2011 emergency
decree granted the military court jurisdiction over all offenses committed in
areas under the state of emergency. The former chairman of the military court
and now the mayor of Mogadishu, Gen.
Hassan Mohammed Hussein Mungab, said that the decree had expired three months after
its promulgation and that the civilian cases were either dismissed or handed
over to the ordinary courts.[45] Court
officials also said that the 2011 decree was no longer in effect. However, defense
lawyers and others dealing with the court expressed confusion as to whether or
not the emergency decree was still in effect and the court has continued to
bring to trial individuals who are not members of the Somali armed forces.[46]
Whether permitted by law or not, the military court in south-central Somalia, including
in Mogadishu, continues to exercise broad jurisdiction over civilians as well
as military personnel.

International human rights law severely restricts, while African
regional mechanisms completely prohibit, trials of civilians before military
courts. The UN Human Rights Committee, the international expert body that
monitors compliance with the ICCPR, states in its General Comment No. 32 on the
right to a fair trial that while the ICCPR “does not prohibit the trial
of civilians in military or special courts, it requires that such trials are in
full conformity with the requirements of [a fair trial] and that its guarantees
cannot be limited or modified because of the military or special character of
the court concerned.”[47]In practice, therefore, “[t]rials of civilians by military
or special courts should be exceptional, i.e. limited to cases where the State
party can show that resorting to such trials is necessary and justified by
objective and serious reasons” and where “the regular civilian courts
are unable to undertake the trials.”[48]

Government and judicial officials said that the ordinary
courts were unable to deal with Al-Shabaab-related
cases as a result of security concerns.[49] A
presidential advisor told Human Rights Watch that, “the military courts
help us to expedite the Al-Shabaab cases
and discourages other terrorist acts.”[50] The
security concerns of ordinary courts are very real. According to the United Nations,
in 2013 at least four judicial personnel were
killed in Mogadishu alone.[51] An April 2013 attack on a regional court complex killed
a judge and three lawyers.[52] However ordinary courts are functioning in Mogadishu
and other areas nominally under the central government control, although Human
Rights Watch has not carried out an assessment of their work. According to the United
Nations, the regional court complex was functioning once again as of late 2013
and most of the district level courts were working in Mogadishu. Human Rights
Watch found that regional and district courts are also functioning in Baidoa
and Beletweyne, although the effectiveness and the extent of their operations are
unclear.[53]

Given the poor state and insecurity of the Somali criminal
justice system, particularly in areas that had been under the control of Al-Shabaab before coming under government
authority, there may be situations where the absence of ordinary courts made
military courts trials of civilians temporarily justifiable. Yet, except when
the 2011 emergency regulations were in effect, the military has not sought to
justify its trials of civilians, nor have the use of military courts appeared
temporary.[54]

The African regional prohibition on trials of civilians before
military courts is absolute. The African Commission on Human and Peoples’
Rights stated in its 2011 Principles and Guidelines on the Right to a Fair
Trial and Legal Assistance in Africa (“African Fair Trial Principles and Guidelines”)
that military courts could not meet the requirements of independence and
impartiality required under international law and therefore, “[m]ilitary
courts should not in any circumstances whatsoever have jurisdiction over
civilians.[55] This
position was adopted in the case law of the African Commission in Law Office
of Ghazi Suleiman v. Sudan, which held that “civilians appearing
before and being tried by a military court presided over by active military
officers who are still under military regulations violates the fundamental
principles of fair trial.”[56]

Military court officials and defense lawyers working before
the military court told Human Rights Watch that alleged members of Al-Shabaab
made up the bulk of their caseload.[57] Al-Shabaab
and other armed groups have been implicated in numerous serious violations of
international humanitarian law, or the laws of war, and other crimes in
violation of Somali law for which they should be appropriately tried and
punished. The laws of war do not prohibit military trials of enemy combatants
for war crimes and other criminal offenses during so-called non-international
armed conflicts, such as in Somalia. However, the circumstances in which trials
of alleged Al-Shabaab members are being conducted in Somalia raise serious
concerns about their lawful use.

Common article 3 to the four Geneva Conventions of 1949,
applicable during non-international armed conflicts, broadly permits trials
“by a regularly constituted court, affording all the judicial guarantees
which are recognized as indispensable by civilized peoples.”[58]
Similarly, Protocol II of 1977 to the 1949 Geneva Conventions likewise applies
to prosecutions of criminal offenses related to the armed conflict, and
requires that trials be conducted by courts “offering the essential
guarantees of independence and impartiality.”[59]

Human Rights Watch learned of cases of alleged Al-Shabaab
members who were tried for criminal offenses such as murder or Al-Shabaab
membership unrelated to the armed conflict.[60] Members
of Al-Shabaab who do not have an operational military role can only be
considered as civilians under the laws of war and therefore should be tried by
ordinary courts, consistent with the Banjul Charter.Bringing Al-Shabaab fighters before the
military court would require that the court meet international standards of
independence and impartiality, which, due to their chain of command and absence
of appeal to a higher civilian court, they do not.

The military court has also tried defendants who are police officers,
members of NISA, and employees of the custodial corps or prison service, all of
whom are civilians and thus should be prosecuted in the civilian courts.
Military court officials interviewed by Human Rights Watch saw these cases as
firmly within their jurisdiction.[61] The military’s
attorney general told Human Rights Watch in December 2013 that he had recently
received 30 files of crimes involving NISA officials for trial in the military
court.[62] One of
the 13 individuals executed following decisions by the military court in 2013
was a police officer. More recently, on March 11, 2014, three men were executed
in Mogadishu following a verdict by the military court. According to Col. Liban Ali Yarow, two were soldiers and the third defendant was a
member of the municipal police.[63]

Lastly, the military court has tried members of the Somali
armed forces for offenses committed against civilians. The 2012 Somali Provisional
Constitution, under the provision on “Abuse of Powers,” provides
that “Human rights abuses alleged to have been
committed by members of the armed forces against civilians shall be brought
before a civilian court.”[64]Prosecuting military personnel for human rights
violations against civilians in ordinary courts would also be consistent with
the African Fair Trial Principles and Guidelines, which state: “The only
purpose of Military Courts shall be to determine offences of a purely military
nature committed by military personnel.”[65]

In Baidoa on July 19, 2013, the military court heard three
murder cases, two involving the killing of civilians, one during a personal
dispute, and one at a government checkpoint.[66]
According to UN figures, between January and November 2012, the military court opened
13 cases against members of the Somali security forces members accused of rape.[67]
Similarly, one defense lawyer described a case in which a government soldier
was sentenced to 15 years for raping an internally displaced woman.[68]
One of the three men executed on March 11, noted above was a soldier who was
found guilty of killing a civilian.[69]

Limited Legal Qualifications of Military Court Personnel

Concerns were raised with Human Rights Watch about the legal
qualifications of military court personnel and judges.[70]
The UN Basic Principles on the Independence of the Judiciary states that “Persons
selected for judicial office shall be individuals of integrity and ability with
appropriate training or qualifications in law.”[71]
The African Fair Trial Principles and Guidelines provide that “No person
shall be appointed to judicial office unless they have the appropriate training
or learning that enables them to adequately fulfil their functions.”[72]

A significant number of military court officials, including
judges and advisors, sitting at both the first instance level and the Supreme Military
Court, are individuals whose only legal training is in Sharia law. The Supreme
Court chief justice and several lawyers questioned both benches’
understanding of ordinary criminal law.[73] This
lack of legal qualification of military judicial officials is particularly
troubling given the serious offenses they try under the military and regular penal
code, including crimes that carry the death penalty.

Right to a Trial without Undue Delay

The ICCPR obligates governments to ensure that persons in
custody are brought promptly before a judge or other judicial officer and are
able to challenge the lawfulness of their detention.[74]
Criminal suspects are to be “tried without undue delay.”[75]

Military court officials and other judicial personnel
identified lengthy pretrial detention resulting from poor investigations as the
biggest challenges to their work.[76] The
attorney general of the military court told Human Rights Watch that his office
is informed when individuals who fall within the court’s jurisdiction are
arrested.[77] According
to the Code of Military Criminal Procedure, persons can be held for up to 180
days in remand (pretrial) detention.[78] While the
military code does not clarify procedures for judicial review, the Somalia criminal
procedure code provides states that an individual in custody must be brought
before court every seven days.[79]

Judicial review by the
military court during pretrial detention was inconsistent in the cases Human
Rights Watch examined. Under Somalia’s provisional constitution, “[e]very person who is arrested has the
right to be brought before a competent court within 48 hours of the
arrest.”[80] The
lack of judicial review heightens the risk that any mistreatment of detainees
could be overlooked or ignored. Military court officials hold the NISA responsible
for holding detainees without judicial oversight and appear not see it as their
responsibility to follow-up. Gen. Hassan Mohammed Hussein Mungab, the mayor of
Mogadishu and the former chairman of the military court, told Human Rights
Watch:

What is happening in that area [regarding prompt appearance
before a court] and what the law says are different. A person should be brought
to court within 48 hours but it takes time in Villa Somalia [where many NISA
detainees are held] and witnesses are scared to come forward.

The attorney general writes letters asking for the
situation of detainees when relatives come forward and complain. NISA often goes
to the president and asks for more time. They come to us saying, this is one of
the individuals that the US is looking for [for alleged terrorist activities].[81]

In Mogadishu, Human Rights Watch identified some cases in
which detainees were detained without charge for between two to six months by
NISA with limited access to court.[82] The
current legal status of NISA, including its powers to arrest and detain, are
unclear.[83] Some Somali
lawyers point to the 1970s laws on the National Security Service (NSS) as granting
the intelligence agency powers of arrest and detention; however, the NSS was officially
disbanded in 1990 and only later replaced by National Security Agency (NSA) and
under the new government by NISA.[84] Other
government and court officials told Human Rights Watch that NISA currently has
no legal mandate to arrest and detain, and said that the government was
planning to draft a law that would clarify NISA’s mandate.[85]
Government officials described NISA’s broad current involvement in law
enforcement activities as the result of significant security concerns and
limited capacity of the police.[86] However,
such heightened reliance on security services does not justify the failure of security
officers to operate within the framework of international human rights
standards.

In one case of eleven unrelated defendants, all reportedly
accused of providing funding for Al-Shabaab and arrested over a period of
several months beginning in April 2013,[87] at
least two of the defendants were held for over two months in NISA detention
before ever being brought before a judge.[88] When
the trial started in October 2013, the defendants appeared on five occasions within
the space of one month before the military court. An attendee at the trial said
the prosecution failed to provide any evidence against the individuals and the
court ordered their release.[89] Nevertheless,
they were sent back to NISA facilities at Villa Somalia for further
investigation. Between February and March 2014 the 11 individuals were finally released.[90]

Pretrial detention without judicial review is of particular
concern in areas outside of Mogadishu. When the mobile court travelled to
Baidoa in July 2013, it heard over 130 cases, including 69 cases in which the
individuals were accused of being Al-Shabaab members. A significant number of
the defendants had been held for over a year without appearing before a court,
arrested in security sweeps in the months following the capture of Baidoa by
government forces and the African Union Mission to Somalia (AMISOM) in February
2012.[91] The
establishment of a branch of the military court in Baidoa as of January 2014
should speed judicial review, and help to ensure that civilian cases are
transferred to the ordinary courts.[92]

Right to a Public Hearing

International fair trial standards call for hearings and
judgments to be public, to ensure transparency of proceedings and serve as an
important safeguard for defendants. Hearings can exceptionally be held in
private before the judge, such as for specific and limited reasons of national
security.[93] The UN
Human Rights Committee has noted that under the ICCPR, “Courts must make
information regarding the time and venue of the oral hearings available to the
public and provide for adequate facilities for the attendance of interested
members of the public, within reasonable limits.”[94]

Most military court hearings in Mogadishu occur in the central
prison main building. Prison and court officials restrict public access to the hearings,
primarily due to limited space in the makeshift court room. Relatives of those
tried before the court told Human Rights Watch that they could not attend
hearings in cases in which more than one defendant was on trial.[95]
The relative of a business man among the 11 accused of funding Al-Shabaab mentioned above said, “We
asked several times to have access to the courtroom, but we were always told to
sit in the hall.”[96] On at
least one occasion a judge denied a request by journalists to attend military
court proceedings.[97]

There is currently no regular independent monitoring of the
military court proceedings.[98] On
several occasions court officials have cancelled visits by international
monitors from the United Nations and donor governments.[99]
In addition, information on the holding of hearings is rarely available.
Relatives said that they were often only informed about a hearing taking place
if they happened to be visiting defendants in prison prior to the hearings.[100]

Right Not to Be Compelled to Testify against Oneself

Under international human rights law as well as
Somalia’s provisional constitution,[101] no one
can be compelled to testify against themselves, to confess guilt, or to testify
against others.[102] The UN
Human Rights Committee notes that “[t]his safeguard must be understood in
terms of the absence of any direct or indirect physical or undue psychological
pressure from the investigating authorities on the accused, with a view to
obtaining a confession of guilt.”[103]

The cases examined by Human Rights Watch show that the military
court is heavily reliant on testimonies and confessions from defendants,
raising concerns of coerced confession.[104] Military
court officials told Human Rights Watch that an individual cannot be convicted
solely on the basis of a confession.[105] However,
in July 2013 and January 2014 the military court in Baidoa heard eight cases of
murders or killings involving government soldiers and a government official in
which no witnesses testified in court and very limited other evidence was brought
forward.[106] The court
reportedly convicted seven of the defendants, sentencing five to the death
penalty and two to make diya (“blood money”) payments based
solely on the defendants’ confessions.[107]

A relative of a government official who was sentenced to
death in July 2013 for allegedly murdering his wife said, “There was no
evidence brought to the court against him. There was not a single witness,
there was no gun…. The lawyer mentioned this, but the court did not
listen.”[108]

The Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides
that governments should “ensure that any statement which is established
to have been made as a result of torture shall not be invoked as evidence in
any proceedings.”[109] The UN Human Rights Committee has said that in cases
of a claim that evidence was obtained
through torture or other ill-treatment, “information about the
circumstances in which such evidence was obtained must be made available to
allow an assessment of such a claim.”[110]

Human Rights Watch was not able to document the use of
confessions gathered through torture or coercion as evidence in court. However,
we received several credible reports of defendants being mistreated during the
pretrial period, notably during detention in NISA facilities.[111]
The uncle of a NISA official, who had been arrested for having beaten a
civilian in late 2012, said that during his detention his nephew “was
beaten—he still has a scar on his face—and beaten on his chest.
This was at the ‘PS’ [a common name for NISA] in Villa Somalia.…
They were taken to a room and beaten with sticks and wires.”[112]

Right to an Appeal

The ICCPR ensures criminal defendants the right to appeal:
“Everyone convicted of a crime shall have the right to his conviction and
sentence being reviewed by a higher tribunal according to law.”[113]
The right to an appeal is prescribed in Somalia’s military penal code;[114]
in 2012, the Supreme Military Court was re-established.

However, the basis for an appeal under the military criminal
procedure code is limited to procedural flaws or errors of law in the
sentencing.[115] The UN
Human Rights Committee has stated in its general comment on fair trial that “[t]he
right to have one’s conviction and sentence reviewed by a higher tribunal”
imposes “a duty to review substantively, both on the basis of sufficiency
of the evidence and of the law, the conviction and sentence, such that the
procedure allows for due consideration of the nature of the case.” A review
“limited to the formal or legal aspects of the conviction without any
consideration whatsoever of the facts is not sufficient under the Covenant.”[116]

In practice, many convicted defendants seek to appeal but in
practice are not afforded this right by a higher court. Human Rights Watch research
found that only certain types of cases are more likely to end up in appeal,
primarily capital punishment cases, although there does not appear to be a
clear process for this. One lawyer complained that the Supreme Military Court
“only sits for the big cases,” mentioning capital punishment cases
and other high-profile cases.[117] Many defendants
may in practice be denied having their cases reviewed by a higher court.

In 2013 the Supreme Military Court only heard cases
sporadically. However, according to a court lawyer, as of 2014, it is now sitting
on a weekly basis in Mogadishu, which could improve administration of appeals.[118]

Lawyers and relatives of individuals sentenced by the court
complained that obtaining the necessary documents to file an appeal was difficult,
and on occasion expensive. The court did not always make the written judgments
readily available.[119] One
lawyer blamed the trial court judges: “If it was a civil court I could
easily ask for a [written judgment], but these military tribunal guys think
they have absolute power, and you can’t talk to them, you can’t ask
them anything, and they don’t respect the human rights of people.”[120]

The relatives of four intelligence officials sentenced to
two years’ imprisonment for beating a civilian complained that it took
them several months to lodge an appeal because they could not get all the
required documents and the clerks were often unavailable.[121]
They said they had to pay the court clerks $200 to file the appeal, a huge sum
in Somalia.[122]

Those sentenced by the mobile military court face additional
challenges when seeking to appeal decisions. Relatives of defendants convicted
in Baidoa cited distance from Mogadishu, where appeals have to be filed, costs
of transport, and legal assistance as well as not having judgments in writing
as factors that undermined or obstructed their ability to lodge an appeal.[123]

Several relatives of convicted individuals told Human Rights
Watch that when they deposited appeals with the clerks at the Supreme Military
Court, they were told to negotiate with the relatives or clan of the victims
rather than appeal.[124]The relative of the man sentenced to death for killing his wife
in July 2013 deposited an appeal in Mogadishu and was told to negotiate the diya
payment with the woman’s family.[125] As of February
his relative’s appeal has not been heard by the Supreme Military Court and he is still struggling to collect the diya
amount requested by the victim’s family.[126]

A defense lawyer said that in most of the cases
in 2013 in which members of the security services that he represented were
convicted of killings, they had paid diya and been released.[127] In
January 2013, a government soldier was convicted by the military court of
killing a civilian in the town of Jowhar and his superior officer was also
convicted for failing to comply with the arrest warrant to bring the soldier
before the authorities. The military court reportedly later released the
soldier following negotiations with the victim’s family, while his superior,
whose crime was less serious, is continuing serving his sentence.[128]

Imposition of the Death Penalty

Human Rights Watch opposes the death penalty in all
circumstances as an inherently cruel and irreversible punishment. The notion of
irreversibility is particularly relevant in the cases currently before the
military court, given the due process concerns identified in hearings before
the court described above as well as the broad jurisdiction exercised by the
court.

In cases where people face the death penalty,
international human rights standards require fair trial safeguards that exceed those
that must be afforded to individuals facing criminal charges generally. This
includes the right to appeal and seek pardon or commutation of the sentence.[129]As the UN Human Rights Committee has noted, “The
right of appeal is of particular importance in death penalty cases.” The
denial of legal aid by the court reviewing the death sentence of an indigent
convicted person constitutes not only a violation of the right to legal
counsel, but also the right to appeal one’s conviction. The “denial
of legal aid for an appeal effectively precludes an effective review of the
conviction and sentence by the higher instance court.”[130]

According to public records, at least eleven people—eight
government soldiers and three non-military personnel—were executed in
2013 following death sentences imposed by the military court. According to a
credible source, three soldiers were executed on the same day in February 2013
after their final appeal was denied.[131] In at least two of
the cases examined by Human Rights Watch, relatives were only informed of the
final sentence through media reports. In the case of Aden Sheikh Abdi, who was sentenced
to death in 2013, accused of being an Al-Shabaab fighter and of having murdered
Somali journalist Hassan Yusuf Absuge,[132] the Supreme Military Court
hearing his appeal reportedly closed before pronouncing the sentence, and Aden’s
relatives only heard about the final decision in the media after two weeks.[133] Aden was
executed eight days later on August 17, 2013. The relatives were never given
the final decision in writing, undermining their ability to seek a pardon or
commutation.[134]

The United Nations
General Assembly in December 2007 passed a resolution by a wide margin calling
for a worldwide moratorium on executions. Globally, more than two-thirds of UN
member states—140 countries—have abolished the death penalty in law
or in practice. This includes 37 of the 54 member countries of the African
Union—more than two-thirds of all African countries.[135]

Somalia’s
President Mohamud should impose a
moratorium on all executions in the country until the country’s death
penalty can be abolished by law.

Acknowledgments

This report was researched and written by Laetitia Bader,
researcher in the Africa division, with the assistance of Abdullahi Hassan
Abdi, intern with the Horn team at Human Rights Watch. The report was edited by
Maria Burnett, senior researcher in the Africa Division. James Ross, legal and
policy director, provided legal review and Babatunde Olugboji, deputy program
director, provided program review.

Jamie Vernaelde, senior associate in the Africa division,
provided production assistance and support. The report was prepared for publication
by Kathy Mills, publications specialist and Fitzroy Hepkins, administrative
manager.

Human Rights Watch would like to thank individuals who
shared their experiences, despite very real concerns of reprisals, making this
report possible.

[1]
The Code of Military Criminal Law in Peace and War, No. 2 of 1963 (“MCC”);
the code is divided into a first section on military law in peace time from article
1 to 208 and then a second section on military law in war time from article 209
to 414.

[2]
The Code of Military Criminal Procedure in Peace and War, No. 1 of 1964
(“MCPC”); the code is divided into a first section covering procedures
in peace time from article 1 to 52 and then a section on procedures in war time
from article 53 to 70.

[3]
Human Rights Watch email correspondence with Somali legal expert, August 18,
2013. Significant amendments were made to the codes during the 21-year rule of
President Mohamed Siad Barre (1969-1991).

[4]
MCPC, art. 1. In 1970, a year after the military coup in Somalia, a law was
passed amending the code of military criminal procedure and granting the
governing Supreme Revolutionary Council the power to overturn rulings by the
Supreme Military Court. The amendment to article 44 of the code provides that
decisions by the Supreme Military Court are final, but when deemed necessary,
the Supreme Revolutionary Council can annul a decision by the Supreme Military
Court (“Tutti i provvedimenti del Tribunale Supremo Militare sono
inoppugnabili. Tuttavia il Consiglio Rivoluzionario Supremo, quan. do reputa
neseccario, puo annullare la sentenza del Tribunale Supremo Militare”).
The Code of Military Criminal Procedure in Peace and War, as amended by No. 20
of April 8, 1970.

[7]
For a more detailed description of Somalia’s formal and informal legal
systems, see Andre LeSage, “Stateless Justice in Somalia: Formal and
Informal Rule of Law Initiatives,” Centre for Humanitarian Dialogue, July
2005, http://www.ssrnetwork.net/uploaded_files/4397.pdf.

[8]
For a more detailed description see Human Rights Watch, Shell-Shocked:
Civilians Under Siege in Mogadishu, vol. 19, no. 12(A), August 2007, http://www.hrw.org/node/10784.

[9]
An English translation of the decree, Presidential Legislative Decree No.179 of
2011, on file with Human Rights Watch, refers to two legal documents as its
basis. First, article 39, section 1(b) of Somalia’s transitional constitution,
the Transitional Federal Charter for the Somali Republic, February 2004, designates
the president as commander in chief of the armed Forces. It also refers to article
70 of the 1963 Public Order Act, which stipulates that a state of emergency
“shall be proclaimed by decree of the President of the Republic on the
proposal of the Minister of Interior, having heard the Council of Ministers.
The decree shall be forwarded to the National Assembly on the same date.”
This article gave the National Assembly the final decision on whether such a
proclamation was approved. However, the August 2011 decree was not approved by
parliament. In addition, article 57 of the Transitional Federal
Charter states that military courts should have jurisdiction only over military
offenses committed by members of the armed forces, whether during war or
peacetime.

[11]
MCC, art. 216, “Persons unrelated to the Armed Forces of the State. Aside
from the cases explicitly stated by the law, the Military Penal Law of War
shall be applied to the persons unrelated to the Armed Forces of the State, who
commit any of the acts as provided by articles 323, 324, 325, 326 and
327.”

[12]
MCC, art. 11, states: “Persons unrelated to the Armed Forces of the
State. 1. The persons unrelated to the Armed Forces of the State who become
involved in committing a military crime, are subject to the Military Penal Law.
2. Aside from the cases explicitly stated by the law, the persons unrelated to
the Armed Forces of the State who commit any of offences referred to in article
78, 120, 124, 125, 129, 166 and 168, shall be liable to the penalties laid down
for military personnel, ordinary penalties replacing military penalties in
accordance with article 55. However, the court may reduce the penalty.”

[15]
Human Rights Watch interviews with Somali lawyer, Nairobi, October 8, 2013; and
Chief Justice Aidid Abdullahi Ilka Hanaf, December 11, 2013. The provisional
constitution states in article 2(3) that: “No law which is not compliant
with the general principles and objectives of Shari’ah can be
enacted,” The Provisional Constitution of the Federal Republic Somalia,
2012.

[26]Basic Principles on the Role of Lawyers,
adopted by the Eighth United Nations Congress on the Prevention of Crime and
the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc.
A/CONF.144/28/Rev.1 at 118 (1990), principle 1.

[28]
According to the UN Human Rights Committee, which monitors compliance with the
ICCPR, in its General Comment No. 32 on the right to a fair trial, “The
right to communicate with counsel requires that the accused is granted prompt
access to counsel. Counsel should be able to meet their clients in private and
to communicate with the accused in conditions that fully respect the
confidentiality of their communications.” UN Human Rights Committee,
General Comment No. 32, Article 14, Right to equality before courts and
tribunals and to fair trail, U.N. Doc. CCPR/C/GC/32 (2007),
http://www.refworld.org/docid/478b2b2f2.html, para. 34.

[29]
“‘Adequate facilities’ must include access to documents and
other evidence; this access must include all materials that the prosecution
plans to offer in court against the accused or that are exculpatory.
Exculpatory material should be understood as including not only material
establishing innocence but also other evidence that could assist the defence
(e.g. indications that a confession was not voluntary).” UN Human Rights
Committee, General Comment No. 32, para. 33.

[32]
Several Somali lawyers, judicial staff and relatives of defendants tried before
the court questioned the legal qualifications of lawyers representing
defendants before the court. In particular they spoke of the lack of
qualifications of two of the main lawyers, one of whom was a police
commissioner in one of Mogadishu’s districts until recently and the other
who many said was not a trained lawyer.

[43] ICCPR, art. 14(1); Banjul Charter, art. 7(1); see Basic Principles on the
Independence of the Judiciary,adopted
by the Seventh United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, Milan, 26 August to 6 September 1985,
U.N. Doc. A/CONF.121/22/Rev.1 at 59 (1985); African Union, Principles and
Guidelines on the Right to a Fair Trial and Legal Assistance in Africa
(“African Fair Trial Principles and Guidelines”), adopted October
24, 2011, http://www.achpr.org/instruments/fair-trial/, principle A(4) on an
independent judiciary. The UN Human
Rights Committee has stated that: “The requirement of independence
refers, in particular, to the procedure and qualifications for the appointment
of judges, and guarantees relating to their security of tenure until a
mandatory retirement age or the expiry of their term of office, where such
exist, the conditions governing promotion, transfer, suspension and cessation
of their functions, and the actual independence of the judiciary from political
interference by the executive branch and legislature. States should take
specific measures guaranteeing the independence of the judiciary, protecting
judges from any form of political influence in their decision-making through
the constitution or adoption of laws establishing clear procedures and
objective criteria for the appointment, remuneration, tenure, promotion,
suspension and dismissal of the members of the judiciary and disciplinary
sanctions taken against them.” UN Human Rights Committee, General Comment
No. 32, para. 19.

[48]UN Human Rights Committee, General Comment
No. 32, para 22. The 2013 report of the UN special rapporteur on judges and
lawyers states that where a government seeks to try civilians before military
courts, it needs to demonstrate that a) the regular civilian courts are unable to undertake the trials; 2) other, alternative forms of
special civilian courts are inadequate for the task; and c) the rights of the
accused will be fully protected. UN Human Rights Council, Report of the Special
Rapporteur on the independence of judges and lawyers, Gabriela Knaul, General
Assembly A/68/285, http://www.law.yale.edu/documents/pdf/conference/UN_A68-285.pdf, (accessed March
19, 2014), para. 51. See also, UN Human Rights Committee, Abbassi v. Algeria,
Comm. 1172/2003, U.N. Doc. A/62/40, Vol. II, at 105 (HRC 2007), para. 8.7;UN Commission on
Human Rights, Draft Principles Governing the Administration of Justice Through
Military Tribunals (“Decaux Principles”), January 13, 2006, U.N.
Doc.E/CN.4/2006/58 at 4 (2006), no. 3: in emergency situations any derogation
from the ordinary administration of justice, “strictly required by the
exigencies of the situation,” need to comply with the fundamental
principles of fair trial.

[58]
Article 3 common to the four Geneva Conventions of 1949, Geneva Convention for
the Amelioration of the Condition of the Wounded and Sick in Armed Forces in
the Field, adopted August 12, 1949, 75 U.N.T.S. 31, entered into force October
21, 1950; Geneva Convention for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea, adopted August 12, 1949,
75 U.N.T.S. 85, entered into force October 21, 1950; Geneva Convention relative
to the Treatment of Prisoners of War, adopted August 12, 1949, 75 U.N.T.S. 135,
entered into force October 21, 1950; and Geneva Convention relative to the
Protection of Civilian Persons in Time of War, adopted August 12, 1949, 75
U.N.T.S. 287, entered into force October 21, 1950.

[59]
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of Non-International Armed Conflicts (Protocol
II), 1125 U.N.T.S. 609, entered into force December 7, 1978, art. 6(2).

[60]
Individuals accused of Al-Shabaab membership are typically charged under
article 221 of the 1964 penal code for “Armed Insurrection against the
Power of the State,” a crime that could be tried by the ordinary courts.

[75]
Ibid., art. 14(3)(c); see also Banjul Charter, art. 7(d). According to the UN Human
Rights Committee, “The right of the accused to be tried without undue
delay, … is not only designed to avoid keeping persons too long in a
state of uncertainty about their fate and, if held in detention during the
period of the trial, to ensure that such deprivation of liberty does not last
longer than necessary in the circumstances of the specific case, but also to
serve the interests of justice.” UN Human Rights Committee, General
Comment No. 32, para. 35.

[83]
The ICCPR, art. 9(1), provides that “No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are
established by law.”

[84]One of the first decrees of the Siad Barre
government gave the newly formed National Security Service (NSS), the
government’s secret service agency, the power to detain with limited
constraints or opportunities for defendants to challenge their detention. National
Security Law, No. 54 of 1970. The NSS was disbanded in 1990. For more details
on the abuses committed by the NSS, see Human Rights Watch, A Government at War with its Own People:
Testimonies about the Killings and Conflict in the North in Somalia, 1990,
http://www.hrw.org/reports/1990/01/31/government-war-its-own-people. Human Rights Watch email communication with
lawyer F, March 31, 2014; and telephone conversation with lawyer G, March 31,
2014.

[93]
UN Human Rights Committee, General Comment No. 32, para. 29, states that:
“courts have the power to exclude all or part of the public for reasons
of morals, public order (ordre public) or national security in a
democratic society, or when the interest of the private lives of the parties so
requires, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would be prejudicial to the interests of
justice. Apart from such exceptional circumstances, a hearing must be open to
the general public, including members of the media.”

[124]
Human Rights Watch telephone interview with I.A., October 23, 2013. Under
Sharia law, family members of victims in cases for “retribution
crimes” such as murder, can decide whether the defendant should be put to
death, pardoned or should pay compensation in the form of blood money. Somali
Xeer law also includes diya or “blood money.”

[129]
While international law and the ICCPR do not prohibit the death penalty, its
application and implementation are subject to stringent conditions. Article 6
of the ICCPR limits its imposition to the most serious crimes, and requires
that it only be carried out “pursuant to a final judgment rendered by a
competent court.” Death sentences imposed in cases that did not meet the
right to a fair trial, including those in which a military court improperly
tried a civilian, would violate the right to life as protected under
international law.

[132]
Human Rights Watch examined the trial of Aden Sheikh Abdi and interviewed both
individuals involved in the prosecution, a defense lawyer, and relatives of the
defendant, but did not identify any evidence presented in court by the
prosecution of Aden’s involvement or membership in Al-Shabaab. This
raises questions as to why this case was heard in front of the military court
and not in the ordinary court.